Donna Glass, Wife of David Louis Voiron VS David Louis Voiron (2008CA1347 Consolidated With 2008CA1348)

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 CA 1347 DONNA GLASS WIFE OF DAVID LOUIS VOIRON VERSUS DAVID LOUIS VOIRON It consolidated with r NO 2008 CA 1348 DONNA J GLASS VERSUS DAVID LOUIS VOIRON Judgment Rendered On March 27 2009 Appeal from the 21st Judicial District Court In and for the Parish ofTangipahoa State of Louisiana Trial Court No 2000 001373 Honorable Bruce C Bennett Brett K c w Judge Presiding Attorneys Duncan Michael Bass 2003 000432 for Defendant Appellant David Louis V oiron Hammond LA Karen Fulda Attorney for Plaintiff Appellee Ponchatoula LA Donna Glass Voiron BEFORE CARTER J C WHIPPLE AND DOWNING JJ CARTER C J David Louis Voiron has 11 2008 which purports to appealed the trial be court judgment ofJanuary s amended version of an a previous judgment partitioning community property that was rendered September 24 2007 FACTUAL AND PROCEDURAL HISTORY Donna Glass and David Voiron 2007 a trial conducted was represented by a the partitioning Judgment was no divorced in November 2001 relating was not ad hoc community property the partition of the to The trial on motion for at present the trial new rendered court September trial on 26 was 2007 In parties the a 1 matter judgment hereafter filed and no appeal taken Well after the new Glass filed with the trial of curator Thereafter I matters Mr Voiron community property but was on were trial and court Two as 11 Judgment run counsel for Ms Judgment Regarding Patiition Judgment II contains the same I but adds granted by this Court were inadvertently omitted from the written judgment presented to this Court Undersigned counsel respectfully requests this Court to allow her to amend the original judgment with the two 2 highlighted paragraphs at the end of this judgment to wit II then Judgment items Amended an Judgment Community Property introductory language appeal delays had of relief repeats all of the content of Judgment I with the following additions IT IS FURTHER ORDERED ADJUDGED AND Temporary Restraining Order granted original petition for divorce be and is hereby made DECREED that the in the This is the third proceedings La App 17 12 04 appeal this court has considered that arises from the divorce of Donna Glass and David Voiron I Cir 113 06 unpublished Glass 897 So 2d 697 2 See Glass v v Voiron Voiron 05 2559 05 2560 03 2823 La App 1 Cir and preliminary granting Donna J Glass a protecting her from David Louis permanent permanent injunction Voiron IT IS ADJUDGED AND FURTHER ORDERED DECREED that Karen Crosby Fulda be and is withdrawn as counsel of record in this matter The trial judge signed Judgment Notice of parte judgment appealed Judgment rulings that were II II January on mailed the was same 11 2008 hereby apparently Mr Voiron day raising multiple assignments of error ex timely that relate to included in Judgment I originally SUBJECT MATTER JURISDICTION II Judgment which I at any time v to rendition of 00 2542 1153 Mr Voiron Thus if appeal s Judgment has a final judgment I was subject that amends delays for appealing Judgment Inc prior s be interlocutory judgment was an Albertson court now to rendered after the was Judgment purports final a La was then it judgment App subject ie Judgment 1 Cir 12 28 01 amendment II Hughes 803 So 2d 1150 timely filed after Judgment jurisdiction to II was II is final rendered then this review the issues raised to I lapsed If I had was interlocutory and Judgment matter Judgment by Mr V oiron If however judgment was Judgment II is Cir null App an was rendered without an absolute See Starnes 1 Cir 10 6 95 819 an judgment and to v the proper the amended procedure Autin 98 2637 writ denied 00 0126 La La 17 3 matter jurisdiction to review Asplundh 670 So 2d 1242 court that finds final Frisard subject v a recourse nullity This court lacks judgments appellate I 747 So 2d 813 12 28 99 So 2d 1145 Judgment Tree 1246 amendment 3 Expert Co The usual to a final then App 00 I 756 absolutely 94 1647 La remedy applied by judgment to be an absolute the McGee original judgment 4 2 04 878 So 2d 552 have Judgment then is to set aside the second nullity Wilkinson v 554 555 In this is the jurisdiction rei K S the case La 1 Cir App delays for appealing I is reinstated long since lapsed therefore if Judgment sua duty of sponte 07 1045 reviewing a jurisdictional question depends nature ofJudgment or C cP 1841 of the Judgment I an not Judgment Even when which the an I Judgment not I did a final not designated be made that was interlocutory course does of an limited not to Considering this on we as a final Judgment I ruling final a final on not a not determine action LSA parties matters in the conclude that art 1841 are instances in judgment Louisiana provides that a partial judgment so or designated by Ms Glass by the trial was or C C P the merits there be considered judgment unless include ex Resolution of the preliminary but less than all of the claims demands issues constitute 39 determines the merits Code of Civil Procedure article 1915B one or more I matters in the ajudgment is rendered not matter the initial determination of the interlocutory judgment under LSA judgment will subject by the parties State interlocutory judgment parties divorce action was raised 977 So 2d 35 Judgment community property dispute and is course on examine that determines the merits of a controversy in only preliminary but art one In contrast in part the merits whether judgment is A final whole I ie not 1 Cir 112 07 App La court to if the issue is even of the was 03 1178 appellate review of the issues raised by Mr Voiron is foreclosed It not and reinstate amending judgment court s to theories shall the trial court request for injunction and therefore an argument could final judgment under Article 1915B 4 as general when In any issue that of Baton 1 App Cir 14 9 transcript reveals judgment is silent litigated that issue was Rouge a v State 07 A CC P the not 970 La App judgment McGee 554 v reasons for judgment Where there is a City 07 0005 La the trial trial court oral s 1 Cir 27 2 controlling Wilkinson even if the trial 03 1178 La 860 So 2d 22 lacked appellate jurisdiction pursuant the judgment appealed did the trial court opined that the not court may to was Pipe Line Cir 1991 5 n v written Olivier 02 supreme court D because unconstitutional although art V l5 unconstitutional in its Corp s 878 So 2d 552 Cir 4 2 04 statute court have intended otherwise LSA Const judgment is and should be accorded sanctity Transcontinental Gas The trial holding that the declare the statute I Willie 01 0821 v Expressway Com 24 La Perkins 170 171 App See also Greater New Orleans 11 18 03 separate and distinct LSA prevails 818 So 2d 167 02 are discrepancy between the judgment and 2795 v rejected or grant the injunction litigated however the for judgment the judgment is demand In this instance stated he would judge was 990 a reflected in the written judgment 1918 reasons part of demand is deemed 985 2d So that the trial judgment and art to any Department of Social Services This evidences that the issue ruling is or as reasons A under the law Preston Oil Co 594 So 2d 908 913 La App 1 Despite the trial to Ms reject Glass court s oral request for s all issues and there is 2 Compare City of Baton I did dispose of injunction issue under Article 1915B no I must be construed Judgment Considering this Judgment at 989 990 Rouge 970 So 2d statement Judgment I was a final judgment Having determined that Judgment the issue of whether the amendment to I was a final judgment allowed was one Louisiana Code of Civil Procedure article 1951 A final any time judgment with may be amended without notice or motion of any party 1 To alter the substance 2 To correct errors from or Kost 02 2785 818 As a 2 motion judgment but or on not the of calculation a final judgment 846 So 2d 692 general rule when error court at a or by Bourgeois v Frisard 747 So 2d at a timely motion for a Caldwell by appeal is contained in error way of subtract to judgment 695 substantive may be corrected nullity the correction of to substantive amendments that add 03 20 5 La action for an own in any way affect the substance of the judgment that trial prohibits and errors provides or Article 1951 limits amendments of clerical of the phraseology by Louisiana law by the trial its on we now turn Leche v final a new 08 0790 08 After the supreme court determined it lacked appellate jurisdiction in Greater Expressway Com n the matter was remanded to the Fifth Circuit Court of New Orleans On remand Appeal based the on procedurally judgment on general not the correct resolution was here as trial court rendered a new a 875 So 2d 876 878 construed as a judgment being for but the was Expressway Com n v acknowledged The court denial but stated evidence otherwise judgment judgment a second appeal reasons case Greater New Orleans 5 Cir 5 26 04 App the appellate jurisdiction justice dictated that to remand the matter to the trial court for it to render the constitutional issue rule of silence in case of unique procedural posture Olivier 04 79 La the the Fifth Circuit determined it did have Id at 878 n 5 That is After the taken to the Louisiana Supreme opinion the Court stated that the Fifth Circuit had remanded the case and noted that it expressed no opinion concerning the correctness of the Fifth Circuit s Court In its reasoning Greater New 892 So 2d 570 573 1 19 05 We find that the mandate to application be construed as a Orleans Expressway Com n 04 2147 La surrounding facts Olivier v 4 n procedural posture general rule that of the of this case as silence in denial of that claim 6 a well as judgment the as to a party s claim is 0791 08 0792 jurisprudence to change LaBove a recognizes also final Glass argues that Louisiana v W that 994 So 2d 679 682 in certain circumstances may be effected judgment substantive because Hebert Cir 9 23 08 by consent a n 8 Our substantive of the parties Theriot 597 So 2d 1007 1010 La 1992 v Ms not 1 App La Judgment II s amendments they formed part of the trial Supreme Court considered and rejected Hebert 351 So 2d 1199 think that e in 1200 La 1977 LSA C C P enacting court a to Judgment oral s ruling I are The similar argument In reasoning art the 1951 legislature intended to prohibit alterations in the substance of the written judgment after it has been signed by the judge and not alterations in the judge s oral statements from the bench Otherwise inadvertent but substantive misstatements once be changed except for their by the trial judge could phraseology or for corrections of errors in calculation This uttered not Moreover the notion that the result would be unreasonable substance of the oral remarks should govern instead of the substance of the written judgment could not have been the judge s legislative intent because it would destroy the integrity of written judgments as evidence and public record of the court s decree Accordingly For regard we reject to Ms Glass An amendment to amendment Glass s we construe Judgment I that grants to be an Judgment a rejection of that request injunction paragraph added by Judgment withdraw which is also a I s silence with is II a 3 substantive permits Ms substantive amendment to 1 Generally recourse to 3 to argument request for injunction The second attorney Judgment s s forth herein set reasons Ms Glass substantive the proper amendments procedures are to judgments made without absolute nullities Wooley v AmCare Glass has also advanced the argument that both Judgments I and 11 are valid final judgments but that Mr Voiron s appeal is limited to those rulings added by s Judgment 11 Considering our analysis of Judgment l finality and its rejection of Ms Glass Ms s claims we find no merit to this argument 7 Health Plans of Louisiana Inc 17 1 If 07 952 So 2d 720 II then those motion for new trial or errors can be issue at courts have also La 4 28 95 1 Cir App substantive were by way of LaBove 597 So 2d at 1010 Court Supreme La by omitting the rulings added by recognized substantively changed by consent of the parties The Louisiana 0593 errors 06 1154 could have been corrected by appeal circumstances Louisiana through The amendments 730 I contained substantive Judgment Judgment 06 1146 eXplained in that timely In certain final a a judgment Id Brazan Brazan v 95 653 So 2d 581 subsequent substantive amendment to a final judgment made with the consent of both parties and signed prior to the lapse of the delay provided for taking an appeal may be considered to have the effect of creating a new final judgment from which the delay period for taking an appeal commences to run anew A Villaume v Villaume 363 So 2d 448 La 1978 Mr Voiron takes the the trial court position that Ms Glass the amended judgment Of course if Judgment goal of appellate review In considering the record Judgment to I affidavits or this a final s thus creating a new final we V oiron consented to judgment by has expressed consent 597 So 2d at 1011 must In the parties as 8 to their new final with achieves his II no evidence in substantively amend that be an assertion supported by considering the issue the Court noted that the record contained testimony of a judgment first note that there is to amendment to the appeal is timely and he Supreme Court LaBove regard rulings contained in Judgment all argument The Louisiana competent evidence LaBove over judgment II amounts to Voiron show that Mr of amendment of in Mr appeal delays then of Judgment II presentation combined with his silence with amounts to consent to new s no participation in depositions or consent to the amended such judgment or on judgment existed a submitted VilIaume that to the trial court ex when the amended motion of a See party substantively must circumstances of Mr Voiron not the proceedings only by virtue Voiron silence s evidence of his as consent Inc be no 11 2008 is valid basis for subject an an true in of a court La App case at cannot finding of the motion the on parties of the ex parte Jefferson v 5 Cir 10 16 96 under the trial and appointed Contrast 1978 consent judgment a this being present particular participating curator ad hoc in Mr be considered competent 4 Considering the foregoing January alter 96 309 the amendment to La II Judgment counsel s Alliance For Good Government Such 839 So 2d 836 451 2 knew even No such evidence submitted upon joint was Alliance For Good Government 683 n validly made by was judgment A trial court cannot parties Ms Glass by parte Villaume 363 So 2d 448 449 v 10 I O at In fact it appears that either case substantive amendment a question of whether they LaBove 597 So 2d appears in the record in this was the absolute conclude that nullity See appeal of matter jurisdiction to we an Judgment II LSA C CP art 2002 absolutely null judgment and review it See Starnes 670 So 2d at signed There is we lack 246 CONCLUSION For the 2008 judgment 4 foregoing reasons and reinstate the appeal Mr Voiron signed by the judge He takes vacate and set original September aside the 24 2007 January judgment 11 The complain about the fact that Judgment II was the position that the judgment was amended by consent because if this court finds that to be the case the Judgment II amounted to a new final judgment from which new appeal delays ran allowing him to gain appellate review of the rulings On we set forth in Judgment 1 does not Mr Voiron has not however the substance of the amendments contained in Judgment Judgment II amounts to any type of compromise agreement 9 expressed II and is not his consent to asserting that appeal of the January appeal are assessed 11 equally 2008 to judgment is hereby dismissed Costs of David Louis Voiron and Donna Glass JUDGMENT OF JANUARY 11 2008 VACATED SEPTEMBER 24 2007 REINSTATED 10 JUDGMENT OF APPEAL DISMISSED

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